Citation NR: 9609409
Decision Date: 04/04/96 Archive Date: 04/16/96
DOCKET NO. 94-02 074 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an increased evaluation for reactive airway
disease (asthma), currently evaluated at 10 percent
disabling.
REPRESENTATION
Appellant represented by: David Slagle, Attorney-At-Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amy Padoll, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1989 to
December 1991.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contended, in a statement dated in November 1992,
that he has been experiencing between two to four asthma
attacks weekly since November 1990. Moreover, he stated
that, as a result of this, he is unable to do many physical
activities. In addition, in a statement dated in September
1993, the veteran contended that his asthma attacks are
associated with exertion and cold air, although they are not
exclusive reasons for his attacks.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the veteran's claims file. Based on its review of
the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the veteran’s claim
for an increased evaluation for reactive airway disease
(asthma).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the veteran’s appeal has been obtained by the
regional office (RO).
2. Reactive airway disease (asthma) is not more than mild,
with paroxysms of asthmatic type breathing occurring several
times a year with no clinical findings between attacks.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of 10
percent for reactive airway disease (asthma) have not been
met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R.
§ 3.321, 4.7 and Part 4 Diagnostic Code 6602 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claim is well grounded within the meaning of
38 U.S.C.A. § 5107 in that he has presented a claim which is
plausible. As it stands, the pertinent evidence of record,
which consists of service medical records, private medical
records and reports of Department of Veterans Affairs (VA)
examinations, provides a sufficient basis upon which to
address the merits of his claim. Accordingly, no further
assistance to the veteran is required to comply with the duty
to assist him as mandated by 38 U.S.C.A. § 5107(a) (West
1991).
With respect to claims for increased evaluations, the Board
points out that disability evaluations are determined by the
application of a schedule of ratings which is based on the
average impairment of earning capacity. Separate diagnostic
codes identify the various disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1995). Generally, the degrees
of disability specified are adequate to compensate for
considerable loss of working time from exacerbation or
illness proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1995).
A 10 percent evaluation is commensurate with mild bronchial
asthma, manifested by paroxysms of asthmatic type breathing
(high pitched expiratory wheezing and dyspnea) occurring
several times a year with no clinical findings between
attacks. The next higher evaluation, a 30 percent
evaluation, is assigned for moderate bronchial asthma,
manifested by “rather frequent” asthmatic attacks (separated
by only 10-14 day intervals) with moderate dyspnea on
exertion between attacks. 38 C.F.R. Part 4, § 4.97,
Diagnostic Code 6602.
The veteran’s service medical records reveal that asthma
symptoms first became manifest in service. In 1990, the
veteran developed shortness of breath while running. In
December 1990, a diagnosis was made of exercise induced
bronchospasm. His exercise induced shortness of breath
continued during service. Asthma was diagnosed in August
1991. In July 1991, the veteran underwent a military Medical
Board physical examination of the lungs which was within
normal limits except for expiratory wheezes noted at both
bases. A diagnosis of reactive airway disease was made and
the veteran was prescribed medication. Service connection
was established for the disability at issue with a 10 percent
rating assigned effective from December 7, 1991.
In December 1992, the veteran underwent a VA physical
examination. At that time the veteran reported that he was
not taking any medications, and had about three low level
asthma attacks per week, which were always associated with
exertion. The examination revealed the lungs to be clear
with one small area of wheezing in the right lower section.
He was not cyanotic and his respiratory rate was 14 and
unlabored. The remainder of his examination of the lungs was
normal. The assessment was history of exercise induced
reactive airway disease with limitations.
In December 1992 the veteran was also seen by a private
physician. At that time the veteran revealed symptoms
consisting of shortness of breath with exertion. He stated
that his asthma has never been characterized by wheezing and
he was not using his inhaler at all. The examination
revealed the veteran to be in no acute distress. There were
slight post nasal drip and nasal erythema, but he reported
having had a respiratory infection at that time. The lungs
were clear. An X-ray of the chest was essentially normal.
The examiners impression was asthma, confirmed by a
methacholine challenge test given at that time, predominately
exercise and cold air induced.
The methacholine challenge test conducted at that time
revealed his baseline spirometry included a vital capacity of
97 percent of predicted and a forced expiratory volume (FEV)
of 104 percent of predicted. He was challenged with diluent
with no response and then received 1 and then 5 puffs of a 25
milligram/milliliter solution of methacholine. At this point
his vital capacity had fallen to 83 percent and his FEV to 65
percent of predicted with curvilinearity of the flow volume
loop toward the origin consistent with obstruction.
Bronchodilator was administered and he returned to 94 and 97
percent of predicted for forced volume capacity and FEV. He
did not develop wheezing.
In January 1994 the veteran attended a hearing before a
traveling member of the Board at the RO. The veteran
testified that asthma attacks occur because of cold weather
or stress, although he was presently not taking any
medications. Transcript (T.) at 3. He further stated that
he has begun wheezing during his asthma attacks. (T.4).
Moreover, he stated that if he is not engaging in any
exercise then he only experiences slight asthma attacks every
couple of weeks. (T.6). Also, he testified that during his
attacks he experiences labored breathing and has trouble
catching his breath. (T.6). In addition, the veteran stated
that if he is in good shape, then the exercise induced
attacks are less severe. (T.7). He also stated that he was
not seeing a physician on a regular basis for his asthma and
he did not take any medications because he did not like them.
(T.10).
Review of the pertinent clinical data in this case clearly
reflects that the veteran’s asthma is rated appropriately at
10 percent. There is no indication by objective medical data
that he has more than mild asthma with paroxysms of asthmatic
type breathing occurring several times a year with no
clinical findings between attacks. Significantly, the Board
notes that on his VA examination the veteran’s lungs were
found to be clear and his respiratory rate was unlabored.
Also, he reported that he was currently not taking any
medications for his asthma. In addition, the report from the
private physician in December 1992 found the veteran to be in
no acute distress. His lungs were found to be clear and an
X-ray taken at that time showed the chest to be essentially
normal. Also, he reported not using his inhaler at all. The
physical examination reports do not demonstrate more than
mild asthma. Therefore, upon consideration of the entire
record the Board concludes that the veteran’s symptomatology
is adequately addressed by his current rating.
In addition, consideration has also been given to the
potential application of the various provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
veteran, as required by Schafrath v. Derwinski, 1 Vet.App.
589 (1991). In particular, the evidence does not demonstrate
objective findings of restrictive airway disease (asthma)
meeting or more nearly approximating the schedular criteria
for the next higher rating. 38 C.F.R. § 4.7 (1995).
Moreover, the evidence discussed above does not suggest that
the veteran’s service-connected asthma presents such an
exceptional or unusual disability picture so as to render
impractical the application of the regular schedular
standards so as to warrant an assignment of an extraschedular
evaluation under 38 C.F.R. § 3.321(b)(1) (1995).
ORDER
Entitlement to an increased evaluation for reactive airway
disease (asthma) is denied.
U. R. POWELL
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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